# Bacon v. Luzerne County

> District Court, M.D. Pennsylvania · April 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10667503

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** April 26, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10667503

## How later opinions describe it (automated extraction)

- finding inmate sentenced to an aggregate of 930 days in disciplinary confinement without dayroom or telephone privileges did not constitute an atypical and significant hardship sufficient to trigger a liberty interest under Sandin
- finding that fifteen months in segregation was not an atypical and significant hardship
- holding that the restrictive conditions in administrative custody in the Pennsylvania state correctional institutions, alone, do not violate the Eighth Amendment

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSHUA DWANE BACON, Civil No. 3:23-cv-1699
Plaintiff (Judge Mariani)
V.
LUZERNE COUNTY, et al,
Defendants □
MEMORANDUM
Plaintiff Joshua Bacon (“Bacon”), an inmate in the custody of the Pennsylvania
Department of Corrections (“DOC”), commenced this civil rights action in the Court of
Common Pleas of Luzerne County. (Doc. 1-1). Defendants subsequently removed the
action to the United States District Court for the Middle District of Pennsylvania. (Doc. 1).
Named as Defendants are Luzerne County, Luzerne County Correctional Facility, Deborah
Schloss, Kaitlynn Romiski, Jamie Aquilla, Christina Oprishko Beyer, David Witkowsky,
Officer Skipalis, William Spare, William Hall, Khalil Lewis, Paul Richards, David Steever,
Randal Williams, James Wilbur, Samuel Hyder, Mark Rockovich, C. David Pedri, Hearing
Examiner Sean Mulhorn, Officer Hrivnak, Officer Sweet, and Officer Patrick Kane.
Presently pending before the Court is Defendants’ motion (Doc. 3) to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the
Court will grant the motion and dismiss the complaint with leave to amend.

I. Aliegations of the Compiaint
At all relevant times, Bacon was housed at the Luzerne County Correctional Faciiity.
(Doc. 1-1). Bacon is serving a 120-240-month sentence for murder in the third degree, for
murdering his grandfather. (/d. 6). Bacon states that he was diagnosed with autism
spectrum disorder and attention deficit hyperactive disorder in 2006, when he was six years
old. (/d. ] 2). Bacon alleges that he has difficulty making and keeping friends, has an
inability to understand nonverbal social cues, and an inability to connect appropriately with
his peers. (/d.). He contends that this diagnosis makes it “obvious” that he could be “easily
victimized, bullied, extorted, and ostracized in a prison setting.” (/d.).
On January 23, 2020, Bacon held a party at his home and used the drug Lysergic
acid diethylamide (“LSD”). (/d. 93). He states that he was unaware that “his brain would
react differently due to his Autism Diagnosis” and that he would have a “very different, more
negative experience.” (/d.). After taking LSD, Bacon began to act erratic and violent, and
assaulted his grandfather, ultimately resulting in his grandfather's death. (/d. 4). Early the
next morning, Bacon was arrested and confined in the Luzerne County Correctional Facility.
(Id. 995, 7).
While housed at the Luzerne County Correctioral Facility, Bacon allecjes that he □□□□
harassed, bullied, extorted, sexually harassed, physically assaulted, and was subjected to
unwarranted investigations which resulted in his placement in the restricted housing unit
("RHU”). (Id. J 7).

On March 31, 2021, Defendant Kaitlynn Romiski, the Prison Rape Elimination Act
(“‘PREA’) coordinator, allegedly called Bacon into her office and asked about 4 complaint
another inmate had lodged against him involving sexual remarks, which Bacon claims are
not true. (/d. 8). Bacon alleges he was removed from administrative segregation and
placed in the RHU as result of this untrue allegation by another inmate. (/d. ff] 9-10). He
further alleges that his placement in the RHU resulted in a loss of yard time, loss of
television, music, playing games on his tablet, and reading, loss of access to drug and
alcohol treatment therapy, loss of law library time, loss of religious services, loss of video
visitation, reduced phone time, inability to maintain a prison job, and being housed in a
small cell. (/d. § 11). Bacon asserts that his placement in the RHU violates the DOC
standards utilized by the state prison system. (/d.). He contends that if he was in the state
prison system, he would have been placed in a Diversionary Treatment Unit. (/d.).
Bacon alleges that on April 6, 2021, his cellmate Kyle Pennington, who was also
classified as administrative segregation, assaulted him. (/d. {J 12-13). During the assault,
Bacon received minor bruises and was moved to another cell. (/d. ] 12). Bacon maintains
that he was traumatized, and the event caused him severe distress and anguish. (/d. J 13).
After the altercation, Bacon met with Defendant Deborah Schloss, the PREA Coordinator.
(Id. 14). After their meeting, Defendant Schloss indicated that she needed more time to
complete the investigation. (/d.). Bacon heard back from her on April 22, 2021. (/d.). On
April 23, 2021, the incident was determined as unsubstantiated, and Bacon was moved

from the RHU. (/d. J 15). During this investigation, Bacon spent twenty-four days in the
RHU. (/d.).
On May 14, 2021, Defendant Skipalis allegedly told Bacon he had to be placed in the
RHU, without explanation. (/d. 16). Bacon claims he was scared, and that he lost his
personal items during the move. (/d.). Defendant Aquilla later explained to Bacon that he

was moved to the RHU due to another PREA violation. (/d. § 17). Additionally, on May 15,
2021, Defendant Hall stated that several inmates signed a petition to have Bacon removed
from their block for PREA violations. (/d. J] 17-18). Bacon alieges that on May 27, 2021,
he spoke with Defendant Schloss, and she indicated that the claims lacked merit, and she
released him from the RHU the next day. (/d. 19). Bacon alleges that he has requested
the identity of the inmates who filed the petition, but Defendant Schloss refused to provide
that information. (/d.). During this investigation, Bacon spent fourteen days in the RHU.
(Id.).
On July 2, 2021, inmate Joshua Keziah allegedly threatened Bacon physically and
verbally, attempted to extort money from him, and assaulted him. (/d. 21). Bacon asserts
that there were no officers on the block at the time of the assault and that he sustained
several injuries, including two black eyes, two teeth permanently misaligned, a third tooth

was knocked out, lacerations to his face and neck, bruising to his jaw and cheekbones, a
fractured nose, and emotional distress. (/d. 22). Defendants Witkosky and Steever
transported Bacon to the medical department for treatment. (/d. | 23). After receiving

medical treatment, Bacon was again moved to the RHU and charged with fighting and a
PREA violation. (Id. □ 24).
On July 6, 2021, Defendant Richards allegedly provided Bacon with a grievance
form and suggested that Bacon threaten a hunger strike to get out of the RHU. (/d. | 26).
Also on July 6, 2021, Bacon met with Defendant Schloss regarding the latest PREA
complaint. (/d.). On July 9, 2021, Bacon was released from the RHU and the allegations
were dismissed as unsubstantiated. (/d. ] 27). During this investigation, Bacon spent eight
days in the RHU. (/d.). Bacon alleges that the assault by inmate Keziah was preventable
and the failure to do so constitutes deliberate indifference. (/d. 28).
On August 26, 2021, Bacon spoke with Defendant Wilbur regarding the harassment
he was experiencing. (/d. J 29). Defendant Wilbur allegedly stated that the issues Bacon
faced were the result of his own actions, and not because of his autism. (/d.). Bacon
further alleges that Defendant Wilbur claimed that “Title 37 allows him to house any inmate
wherever he wishes, and Mr. Bacon has no inherent right to be housed on a protected
block.” (/d.).
The following Defendants are not mentioned in the body of the complaint: Christina
Oprishka-Beyer, William Spare, Khalil Lewis, Samuel Hyder, Mark Rockavitch, C. David
Pedri, Officer Hrivnak, Officer Sweet, and Officer Kane. (Sze generally Doc. 1-1).

Defendants move to dismiss the complaint pursuant to Rule 12(b)(6). (Doc. 3). The
motion is fully briefed and ripe for resolution.’
ll. Legal Standard
A complaint must be dismissed under FED. R. Civ. P. 12(b)(6), if it does not allege
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The plaintiff must

aver “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 1949, 173 L. Ed. 2d 868 (2009).
“Though a complaint ‘does not need detailed factual allegations,...a formulaic
recitation of the elements of a cause of action will not do.” DelRio-Mocci v. Connolly Prop.
Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words,
“[fJactual allegations must be enough to raise a right to relief above the speculative level.”
Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013)
(internal citations and quotation marks omitted). A court “take[s] as true all the factual
allegations in the Complaint and the reasonable inferences that can be drawn from those
facts, but . . . disregard[s] legal conclusions and threadbare recitals of the elements of a

1 Bacon's brief in opposition to Defendants’ motion to dismiss contains facts that are not
expressly set forth in the complaint. (See Doc. 19). The Court may not consider such allegations because
a complaint cannot be amended by way of an opposition brief. See Pennsylvania ex rel. Zimmerman v.
PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“[I]t is axiomatic that the complaint may not be amended
by the briefs in opposition to a motion to dismiss.”).

cause of action, supported by mere conclusory statements.” Ethypharm S.A. France v.
Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation
marks omitted).
Twombly and /qbal require [a district court] to take the following three steps to
determine the sufficiency of a complaint: First, the court must take note of the
elements a plaintiff must plead to state a claim. Second, the court should
identify allegations that, because they are no more than conclusions, are not
entitled to the assumption of truth. Finally, where there are well-pleaded
factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it has not show([n] - that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citations and quotation marks
omitted). This “plausibility” determination will be a “context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” /d.
However, even “if a complaint is subject to Rule 12(b)(6) dismissal, a district court
must permit a curative amendment unless such an amendment would be inequitable or
futile.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
[E]ven when plaintiff does not seek leave to amend his complaint after a
defendant moves to dismiss it, unless the district court finds that amendment
would be inequitable or futile, the court must inform the plaintiff that he or she
has leave to amend the complaint within a set period of time.

Id.

lll. Discussion
A. Disciplinary Confinement Claim
Bacon alleges that the conditions related to his placement in the RHU constituted
cruel and unusual punishment in violation of the Eighth Amendment, and that his placement
in the RHU violated his rights under the Due Process Clause of the Fourteenth Amendment.
1. Eighth Amendment Claim
The Eighth Amendment's prohibition of cruel and unusual punishment imposes
duties on prison officials to provide prisoners with the basic necessities of life, such as food,
clothing, shelter, sanitation, medical care, and personal safety. See Farmer v. Brennan,
511 U.S. 825, 832 (1994); Helling v. McKinney, 509 U.S. 25, 31 (1993). To show that
conditions of confinement violate the Eighth Amendment, a plaintiff bears the burden of
proving two requirements: “(1) the deprivation alleged must be, objectively, ‘sufficiently
serious,” resulting in the “denial of ‘the minimal civilized measure of life’s necessities,” and
“(2) the ‘prison official must have a sufficiently culpable state of mind.” Thomas v. Tice, 948
F.3d 133, 138 (3d Cir. 2020) (quoting Farmer, 511 U.S. at 834; Wilson v. Seiter, 501 U.S.
294, 299, 302-303 (1991) (cleaned up)); McClure v. Haste, 820 F. App’x 125, 128 (3d Cir.
2020). Only “extreme deprivations” are sufficient to present a claim for unconstitutional
conditions of confinement. Fantone v. Herbik, 528 F. App’x 123, 127 (3d Cir. 2013) (quoting
Hudson v. McMillian, 503 U.S. 1, 8-9 (1992)).

To satisfy the first requirement, Bacon “must show that he is incarcerated under
conditions posing a substantial risk of serious harm,” but he need not show actual injury.
Porter v. Pa. Dep't of Corr., 974 F.3d 431, 441 (3d Cir. 2020) (quoting Mammana v. Fed.
Bureau of Prisons, 934 F.3d 368, 373 (3d Cir. 2019) (internal quotations omitted)). “The
proof necessary to show that there was a substantial risk of harm is less demanding than
the proof needed to show that there was a probable risk of harm.” /d. (quoting Chavarriaga
V. N.J. Dep't of Corr., 806 F.3d 210, 227 (3d Cir. 2015)). “This is a totality-of-the
circumstances analysis” and should consider the duration and severity of the
unconstitutional conditions. McClure, 820 F. App’x at 128.
It is well-established that there is no constitutional right for an inmate to be celled in a
particular place, or under particular circumstances. “[Bly virtue of their convictions, inmates
must expect significant restrictions, inherent in prison life, on rights and privileges free
citizens take for granted.” McKune v. Lile, 536 U.S. 24, 39-40 (2002); Podhorn v.
Grondolsky, 350 F. App’x 618, 620 (3d Cir. 2009) (“[P]risoners have no constitutional right
to be assigned to a particular institution, facility or rehabilitative program.”). Rather, “the
prison has a penological interest in the housing placement of its inmates and ‘i]t is well
settled that the decision where to house inmates is at the core of prison administrators’
expertise.” Thomaston v. Meyer, 519 F. App’x 118, 119 (3d Cir. 2013) (quoting McKune,
536 U.S. at 39).

Here, the Court finds that Bacon failed to allege an excessive risk to his health or
safety and failed to establish that any of the Defendants were subjectively aware of facts
from which the inference could reasonably be drawn that his health or safety were at risk.
In the complaint, Bacon alleges that his Eighth Amendment rights were violated
because of the conditions of confinement he encountered in the RHU at the Luzerne County
Correctional Facility. (Doc. 1-1 { 11). Bacon alleges that his placement in the RHU
resulted in a loss of yard time, loss of television, loss of music, loss of playing games on his
tablet, loss of reading, loss of access to drug and alcohol treatment therapy, loss of law
library time, loss of religious services, loss of video visitation, reduced phone time, inability
to maintain a prison job, and placement in a small cell. (/d.). Even taking the allegations
together, the Court finds that Bacon has not established the objective element of his claim,
i.e., that the allegations rise to the level of conduct that may be deemed inhumane or
resulted in the deprivation of the minimal civilized measures of the necessities of life.
Courts routinely hold that the conditions in restrictive housing in Pennsylvania prisons do
not, in and of themselves, violate the Eighth Amendment. See Griffin v. Vaughn, 112 F.3d
703 (3d Cir. 1997) (holding that the restrictive conditions in administrative custody in the
Pennsylvania state correctional institutions, alone, do not violate the Eighth Amendment).
Turning to Bacon's allegations, the denial of exercise or recreation in some circumstances

may result in a violation of the Eighth Amendment, see Peterkin v. Jeffes, 855 F.2d 1021,
1031-33 (3d Cir. 1988), but such is not the case here where the denial was temporary. See

10

Fantone v. Herbik, No. 11-cv-0484, 2013 WL 504610, at *13 (W.D. Pa. Jan. 17, 2013),
report and recommendation adopted, No. 11-cv-0484, 2013 WL 504693 (W.D. Pa. Feb. 8,
2013), affd, 528 F. App’x 123 (3d Cir. 2013). Likewise, Bacon’s allegations that he was
denied coping skills, leisure library and religious privileges, telephone privileges, video
visitation privileges, and placement in a small cell are insufficient to state a claim under the
Eighth Amendment. The loss of such minor privileges simply does not rise to the level of a
sufficiently serious deprivation of life’s necessities. See Griffin, 112 F.3d 703, 709 (no
Eighth Amendment violation where plaintiffs confinement in administrative custody did not
“involve a deprivation of any basic human need”); see also Williams v. Armstrong, 566 F.
App’x 106, 109 (3d Cir. 2014) (per curiam) (inmate failed to state an Eighth Amendment
Claims where “he [did] not allege that he was denied any of life’s necessities, and the
duration of his time in the RHU was 112 days”); Johnson v. Burris, 339 F. App’x 129, 131
(3d Cir. 2009) (holding that administrative segregation and loss of minor privileges are
insufficient to state a conditions of confinement claim).
As to the second requirement, Bacon must show “that the prison official ‘knows that
inmates face a substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.” Porter, 974 F.3d at 444 (citations omitted). The second
element is subjective, and the “prison official must both know of and disregard an excessive
risk to inmate health and safety.” Mammana, 934 F.3d at 373. “In other words, ‘the official
must both be aware of facts from which the inference could be drawn that a substantial risk

11

of serious harm exists, and he must also draw the inference.” Id. (quoting Farmer, 511 U.S.
at 837). Bacon does not allege that any of the Defendants knew about the allegedly
inhumane conditions of the RHU, or if they did, when they were made aware of it and how
long thereafter the conditions were permitted to exist. Thus, Bacon has failed to support a
finding on the subjective prong of the Eighth Amendment regarding his conditions of
confinement claim.
In sum, whatever deficiencies may have existed, they do not rise to the level of a
constitutional violation. The Court will grant Defendants’ motion to dismiss the Eighth
Amendment conditions of confinement claim.
2. Fourteenth Amendment Claim

a. Lack of Personal Involvement
Defendants next seek dismissal of the due process claim based on a lack of
personal involvement. (Doc. 8, pp. 18-20). Individual liability will be imposed under § 1983
only if the state actor played an “affirmative part” in the alleged misconduct. See Evancho

v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1998)). Liability “cannot be predicated solely on the operation of respondeat
superior.” /d. In other words, defendants in § 1983 civil rights actions “must have personal
involvement in the alleged wrongs . . . shown through allegations of personal direction or of
actual knowledge and acquiescence.” Atkinson v. Taylor, 316 F.3d 257, 271 (3d Cir. 2003);
Rode, 845 F.2d at 1207-08. Acquiescence requires both contemporaneous knowledge of

12

the alleged wrongdoing and direct supervisory authority over the subordinate actor.
Atkinson, 316 F.3d at 271; Rode, 845 F.2d at 1207-08. Such allegations, however, must be
made with appropriate particularity in that a complaint must allege the particulars of
conduct, time, place, and person responsible. Evancho, 423 F.3d at 354; Rode, 845 F.2d at
1207-08. When a plaintiff merely hypothesizes that an individual defendant may have had
knowledge of or personal involvement in the deprivation of his or her rights, individual
liability will not follow. Atkinson, 316 F.3d at 271; Rode, 845 F.2d at 1207-08.
Bacon alleges that on March 31, 2021, Defendant Romiski ordered a correctional
officer to take Bacon to the RHU; on April 6, 2021, Defendant Schloss interviewed Bacon
while housed in the RHU; and, on May 14, 2021, Defendant Skipalis told Bacon that he was
being sent to the RHU. (Doc. 1-1 J 10, 14, 16). Aside from these three references, Bacon
does not allege how any other named Defendants were involved in the violation of his due
process rights. The complaint fails to allege any personal involvement of the Defendants
and fails to set forth any factual averments that identifies how they were involved in the
alleged wrongdoing.
To the extent that Bacon’s claims against the Defendants assert liability based on a
theory of respondeat superior liability, as a matter of law, these assertions do not suffice to
state a claim. With respect to any of the Defendants’ roles as supervisors, “there are two
theories of supervisory liability, one under which supervisors can be liable if they
established and maintained a policy, practice or custom which directly caused the

13

constitutional harm, and another under which they can be liable if they participated in
violating plaintiffs rights, directed others to violate them, or, as the persons in charge, had
knowledge of and acquiesced in their subordinates’ violations.” Santiago v. Warminster
Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010) (quotation and alteration marks omitted).
Completely absent from the complaint are allegations that any Defendant established and
maintained a policy, practice or custom which directly caused the constitutional harm, or
that he participated in violating Bacon’s rights, directed others to violate them, or
acquiesced in any unconstitutional conduct by his subordinates. For these reasons, the
Court will grant Defendants’ motion to dismiss the Fourteenth Amendment due process
claim based on a lack of personal involvement. However, even assuming that Bacon
established the personal involvement of Defendant Romiski—through her ordering a
correctional officer to take Bacon to the RHU—the due process claim fails on the merits, as
set forth below.
b. Due Process Claim
Bacon alleges that his Fourteenth Amendment due process rights were violated
based on his placement in the RHU. The Fourteenth Amendment prohibits the states: from
depriving “any person of Ife, liberty, or property, without due process of law.” U.S. CONST.
amend. XIV, § 1. Prisoners have no inherent constitutional right to any particular security
classification or to any particular housing assignment. See Wilkinson v. Austin, 545 U.S.
209, 221-22 (2005) (“We have held that the Constitution itself does not give rise to a liberty

14

interest in avoiding transfer to more adverse conditions of confinement.”). Rather, in the
prison context, “[d]ue process protection for a state created liberty interest is...limited to
those situations where deprivation of that interest ‘imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.” Griffin, 112 F.3d at 706
(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). “[Clonfinement in administrative or
punitive segregation will rarely be sufficient, without more, to establish the kind of ‘atypical’
deprivation of prison life necessary to implicate a liberty interest.” Smith v. Mensinger, 293
F.3d 641, 653 (3d Cir. 2002) (quoting Sandin, 515 U.S. at 486); Burns v. Pa. Dep't of Corr.,
642 F.3d 163, 171 (3d Cir. 2011) (“[IInmates are generally not entitled to procedural due

process in prison disciplinary hearings because the sanctions resulting from those hearings
do not usually affect a protected liberty interest.”). In deciding whether conditions are
atypical and significant for purposes of establishing a liberty interest, a court must consider
“(1) the duration of the challenged conditions; and (2) whether the conditions overall
imposed a significant hardship in relation to the ordinary incidents of prison life.” Williams v.
Sec’y Pa. Dep't of Corr., 848 F.3d 549, 560 (3d Cir. 2017). In determining whether a
hardship is atypical or significant, the relevant comparator is the general population. /d. at
564.
Bacon alleges that he was improperly held in disciplinary custody for a total of forty-
six days, on three separate occasions—first for twenty-four days, then for fourteen days,
and finally for eight days. (Doc. 1-1 ff] 15, 19, 27). The complaint does not give rise to a

15

due process claim based on Bacon's placement in disciplinary custody. With regard to the
limited duration of time Bacon spent in disciplinary custody, he fails to state a constitutional
claim on the facts alleged. See Fantone, 528 F. App’x at 128-29 (finding no procedural due

process claim when inmate complained of thirty-five days in isolation, and the court stating,
“Iwle have held that this type of confinement does not constitute an ‘atypical and significant
hardship’ so as to trigger due process rights.”) (citation omitted); Young v. Beard, 227 F.
App’x 138, 141 (3d Cir. 2007) (finding inmate sentenced to an aggregate of 930 days in
disciplinary confinement without dayroom or telephone privileges did not constitute an
atypical and significant hardship sufficient to trigger a liberty interest under Sandin); Griffin,
112 F.3d at 706 (finding that fifteen months in segregation was not an atypical and
significant hardship); Smith, 293 F.3d at 654 (stating that seven months’ disciplinary
confinement “does not, on its own, violate a protected liberty interest as defined in
[Sandin].”). The Court will grant Defendants’ motion to dismiss the due process claim based

on Bacon's placement in disciplinary custody.
B. Eighth Amendment Failure to Protect Claim
Bacon also alleges that he was assaulted by two inmates, in two separate instances.
It is well-settled that “[b]eing violently assaulted in prison is simply not part of the penalty
that criminal offenders pay for their offenses against society.’ As such, the Eighth
Amendment’s Cruel and Unusual Punishments Clause imposes on prison officials ‘a duty to
protect prisoners from violence at the hands of other prisoners.” Bistrian v. Levi, 696 F.3d

16

352, 366-67 (3d Cir. 2012) (quoting Farmer v. Brennan, 511 U.S. 825, 833, 834 (1994); and
citing Beers-Capitol v. Whetzel, 256 F.3d 120, 130-33 (3d Cir. 2001); Hamilton v. Leavy,
117 F.3d 742, 746 (3d Cir. 1997).
In order for a plaintiff to prove a constitutional violation in a failure-to-protect case,
the plaintiff must produce sufficient evidence showing that: (1) he was incarcerated under
conditions posing a substantial risk of serious harm; (2) each defendant was deliberately
indifferent to that risk; and (3) the defendant's deliberate indifference caused him harm.
Travillion v. Wetzel, 765 F. App’x 785, 790 (3d Cir. 2019) (citing Bistrian, 696 F.3d at 367,
Hamilton, 117 F.3d at 746). Deliberate indifference requires that the prison official “knows
of and disregards an excessive risk to inmate health or safety; the official must both be

aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.
Consequently, prison officials can avoid liability by showing they were unaware of
the danger, or they believed the risk was insubstantial or nonexistent. Bistrian, 696 F.3d at
367. “In addition, prison officials who actually knew of a substantial risk to inmate health or
safety may be found free from liability if they responded reasonably to the risk, even if the
harm ultimately was not averted.” /d. (quoting Farmer, 511 U.S. at 844) (internal quotation
marks omitted)). Mere negligent conduct that leads to serious injury of a prisoner by a
prisoner does not expose a prison official to civil rights liability. Davidson v. Cannon, 474
U.S. 344, 347-48 (1986).

17

Moreover, liability may not be imposed under § 1983 on the traditional standards of
respondeat superior. Capone v. Marinelli, 868 F.2d 102, 106 (3d Cir. 1989) (citing Hampton
v. Holmesburg Prison Officials, 546 F.2d 1017, 1082 (3d Cir. 1976)). In Capone, the court
noted “that supervisory personnel are only liable for the § 1983 violations of their
subordinates if they knew of, participated in or acquiesced in such conduct.” 868 F.2d at
106 n.7. The plaintiff must allege that the defendant was personally involved in the events

or occurrences that underlie the claim. See Atkinson, 316 F.3d at 270-71; Rode, 845 F.2d
at 1207 (“[a] defendant in a civil rights action must have personal involvement in the alleged
wrongs. . . . [PJersonal involvement can be shown through allegations of personal direction

or of actual knowledge and acquiescence. Allegations of participation or actual knowledge
and acquiescence, however, must be made with appropriate particularity.”).
Here, Bacon alleges that prison officials failed to protect him from inmate Pennington
and inmate Keziah, who allegedly assaulted him on two separate occasions. With respect
to inmate Pennington, Bacon asserts that “[t]he officers in charge knew that he was violent
and unpredictable...and knew that plaintiff was uncomfortable and did not feel safe being
housed with Pennington.” (Doc. 1-1 13). With respect to inmate Keziah, Bacon alleges
Keziah assaulted him after Bacon yelled at him. (/d. 21). Bacon contends that staff knew
that Keziah previously threatened him. (/d.). He appears to assert that prison officials
should have known that he would have been assaulted based on the inmates’ history of
aggression. However, Bacon’s attempt to demonstrate a substantial risk of harm based on

18

nothing more than the inmates’ general propensity towards violence represents the type of
speculation that the Third Circuit and other courts have routinely deemed inadequate to
support an Eighth Amendment claim. Thus, even if Defendants were aware that inmates
Pennington and Keziah had a history of violence, the Third Circuit has held that the risk that
“an inmate with a history of violence might attack another inmate for an unknown reason” is
too speculative to maintain a failure to protect claim against prison officials. Bistrian v. Levi,
696 F.3d 352, 371 (3d Cir. 2012), abrogated on other grounds by Mack v. Yost, 968 F.3d
311 (3d Cir. 2020); see also Zuniga v. Chamberlain, 821 F. App’x 152, 157 n.8 (3d Cir.
2020) (affirming grant of summary judgment to prison officials even where the inmate had
reported a prior attack to an unnamed guard); Buoniconti v. City of Philadelphia, 148
F.Supp.3d 425 (E.D. Pa. 2015) (allegation that attackers had a history of “known prior
violent acts and propensity for violence” was insufficient to establish deliberate indifference).
In the instant case, Bacon does not allege that the assaults by inmates Pennington and
Keziah were the product of “longstanding, pervasive, well-documented, or previously noted
tensions between” Bacon and inmates Pennington and Keziah. Blackstone v. Thompson,
568 F. App’x 82, 84 (3d Cir. 2014).
Moreover, Bacon’s allegations are insufficiently particularized as he failed to plead
any of the Defendants’ personal involvement in failing to protect Bacon from the assaults.
As stated, “[a][n individual government] defendant in a civil rights action must have personal
involvement in the alleged wrongdoing...Personal involvement can be shown through

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allegations of personal direction or of actual knowledge and acquiescence.” Evancho, 423
F.3d at 353 (quoting Rode, 845 F.2d at 1207). “A civil rights complaint is adequate where it
states the conduct, time, place, and persons responsible.” /d. Under 42 U.S.C. § 1983,
individual liability is only warranted where an individual personally directed or knowingly
acquiesced to the alleged misconduct. /d.
Bacon makes no allegations that any named Defendant was allegedly deliberately
indifferent to his safety. Without specific allegations that the Defendants personally
contributed to Bacon’s alleged harm, there is no basis for Bacon to proceed against them on

a failure to protect claim. The Court will grant Defendants’ motion to dismiss the Eighth
Amendment failure to protect claim with leave to amend.
C. _ Municipal Liability Claim
Defendants also seek to dismiss the purported municipal liability claim. (Doc. 8, pp.
32-34). A municipality may be held liable under § 1983 “if the governmental body itself
‘subjects’ a person to a deprivation of constitutional rights or ‘causes’ a person ‘to be
subjected’ to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting
Monell v. Dep't of Social Servs. of N.Y., 436 U.S. 658, 692 (2018)). Thus, a plaintiff seeking
to impose constitutional liability on a municipality must meet the difficult burden of proving
that an “action pursuant to official municipal policy” caused their injury. Monell, 436 U.S. at
691, 694. This requires the plaintiff to identify an official or unofficial municipal policy—
including “decisions of a government's lawmakers, the acts of its policymaking officials, and

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practices so persistent and widespread as to practically have the force of law,” Connick, 563
U.S. at 61 (citations omitted), and demonstrate that said policy was the “moving force”
behind his injury, Berg v. Cnty. of Allegheny, 219 F.3d 261, 275-76 (3d Cir. 2000) (quoting
Bad. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997)).
The complaint fails to identify any policy maker effectuating an official policy which

was the moving force behind the alleged constitutional violation. (See Doc. 1-1). In fact,
the complaint fails to reference any policy or procedure that was allegedly violated.
Consequently, Bacon’s claim in the form of a violation of a municipal policy under Monell will
be dismissed with leave to amend.
D. Claims for Declaratory and Injunctive Relief
The case or controversy requirement of Article Ill, § 2 of the United States
Constitution subsists through all stages of federal judicial proceedings. Parties must
continue to have a “personal stake in the outcome of the lawsuit.” Lewis v. Continental
Bank Corp., 494 U.S. 472, 477-78 (1990); Preiser v. Newkirk, 422 U.S. 395, 401 (1975).
The mootness doctrine recognizes that “[i]f developments occur during the course of
adjudication that eliminate a plaintiffs personal stake in the outcome of a suit or prevent a
court from being able to grant the requested relief, the case must be dismissed as moot.”
Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996). An inmate's
transfer from the facility complained of generally moots the equitable and declaratory
claims. Abdul-Akbar v. Watson, 4 F.3d 195, 206-07 (3d Cir. 1993); see Griffin v. Beard, 401

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F. App’x 715 (3d Cir. 2010) (transfer from SCl-Huntingdon renders inmate injunctive relief
claim moot).
Bacon is no longer housed at the Luzerne County Correctional Facility. In light of
Bacon’s transfer from Luzerne County Correctional Facility, the institution wherein the
allegations related to his claims stem, his requests for injunctive and declaratory relief are

now moot.
IV. Leave to Amend
When a complaint fails to present a prima facie case of liability, district courts must
generally grant leave to amend before dismissing the complaint. See Grayson v. Mayview
State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d
Cir. 2000). Specifically, the Third Circuit Court of Appeals has admonished that when a
complaint is subject to dismissal for failure to state a claim, courts should liberally grant
leave to amend “unless such an amendment would be inequitable or futile.” Phillips v. Cnty.
of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008) (citing Alston v. Parker, 363 F.3d 229, 235
(3d Cir. 2004)). The defects in Bacon's pleading are substantial. The Eighth Amendment
and Fourteenth Amendment disciplinary confinement claims are both factually and legally
flawed, and thus incurable; therefore, curative amendment would be futile. However, the
allegations relating to the Eighth Amendment failure to protect claim and municipal liability
claim are largely factual in nature and thus conceivably could be cured by an amended

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pleading. The Court will dismiss Bacon’s complaint with leave to amend only with respect to
these latter two claims.
V. Conclusion
Based on the foregoing, the Court will grant Defendants’ motion (Doc. 3) to dismiss
and afford Bacon the opportunity to file an amended complaint only with respect to his
Eighth Amendment failure to protect claim and municipal liability claim. A separate Order
shall issue.
Cc)
~ \uaedu/
Robert D.
United States District Judge
Dated: April De. 2024

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10667503. Public record. Not legal advice.